Joinder of Charges (section 218 to section 223)

Section 218- Separate Charges for distinct offences

The basic rules for charge is that if a person commits several distinct offences then charge for every
distinct offence will be framed separately and separate trial will be conducted for such offence. This
general rule is laid down in section 218. Section 218 (1) thus reads ‘For every distinct offence of which
any person is accused, there shall be a separate charge and every such charge shall be tried separately.’

An illustration of this is also mentioned in the section. ‘A is accused of theft in one occasion and of
causing grevious hurt on the other occasion. A must be separately charged and separately tried for the
theft and causing of grevious hurt.’ Here we can notice that not only offences have been committed on
separate occasions, they are also of different nature as. However, in certain circumstances several
charges may be joined together and can be tried together. These circumstances have been laid down
from section 219 to section 222. Section 223 talks of joinder of accused in certain circumstances.

What is the meaning of ‘distinct offence’ and ‘same offence’?

A separate charge is required for every distinct offence. ‘Distinct’ means ‘not identical’. Distinct offences
are offences having different ingredients and punishable under different sections. Same offences are
offences having same ingredient and punishable under same section.

The above general rule has several exceptions mentioned in subsequent sections:

1. If the accused person desires to be tried together for all the charges by an application in writing,
the Magistrate may try together all or any number of charges, if such person is not likely to be
prejudiced. (section 218 proviso)
2. When a person is accused of more offences than one of the same kind committed with in the
period of 12 months from the first to the last of such offences, he may be charged with, and
tried at one trial for any number of them not exceeding three. (section 219 (1)). Any offence and
its attempt are considered same kind of offence.
3. When the offences are committed in the course of same transaction, the accused may be
charged with and tried at one trial for every such offence. (section 220(1))
4. If acts alleged constitute an offence falling within two or more separate definitions of any law by
which offences are defined or punished, the person accused of them may be charged with and
tried at one trial for each of such offence.
5. Where it is doubtful what offence has been committed by accused, he can be charged with
having committed all or any of such offences, and any number of such charges may be tried at
one trial or he may be charged in the alternative with having committed someone of the said
offences.

It must however be noted that where the exceptions are applicable, a separate trial would not be illegal
because each of these exceptional provisions is merely enabling and not mandatory. In Slaney Vs State
of MP (1955) 2 SCR 1140 the Supreme Court held that even where the offences are distinct, a joinder of
charges would not vitiate the trial, unless such misjoinder occasioned failure of justice. But the objection
is to be taken at the earliest.
The proviso to section 218 recognises that if accused is being tried for several charges in separate trials,
then by an application, he can request to the court to keep the charges separate but try them together.
This is called consolidation. Note here that the application is not for joinder of charges as such, but for
joinder of trials. If the magistrate is of opinion that such person is not likely to be prejudiced there by
then he may try together all or any of the charges framed against such person.

Further, joint trial under proviso to section 218 (1) is possible provided such trial is permissible under
sections 219, 220,221, and 223 and is not barred by any of them. This can be deciphered by reading the
limitations set in subsection 2 of section 218 into subsection 1 of the section.

Thus, conditions for application of this proviso are –

 the accused person must apply in writing for joint trial

 the magistrate must himself be satisfied that the accused will not be prejudiced by the joint trial
of all or some of the charges framed against him. He will then allow joint trial to that extent.
 there should be no bar to joint trial for the offences for which the accused is being tried, under
section 219,220,221 and 223.

Section 219- Three offences of same kind within year may be charged together.
(1) When a person is accused of more offences than one of the same kind committed within the space of
twelve months from the first to the last of such offences, whether in respect of the same person or not,
he may be charged with, and tried at one trial for, any number of them not exceeding three. ( it is joined
by mentioning all three offences committed by accused under three different heading within same
document of charge for the purpose of section 219.)

(2) Offences are of the same kind when they are punishable with the same amount of punishment under
the same section of the Indian Penal Code (45 of 1860) or of any special or local law:

Provided that, for the purposes of this section, an offence punishable under section 379 of the Indian
Penal Code (45 of 1860) shall be deemed to be an offence of the same kind as an offence punishable
under section 380 of the said Code, and that an offence punishable under any section of the said Code,
or of any special or local law, shall be deemed to be an offence of the same kind as an attempt to
commit such offence, when such an attempt is an offence. (example- murder or attempt to murder will
be same kind of offence for section 219.)

Note: where it is permissible under the code to try several persons together at a joint trial, for several
offences, they may be tried for all these offences by any court which is competent to try any of them,
even though the other offences had been committed outside its jurisdiction. (see section 184 of CrPC)

Section 220- Trial for more than one Offence

(1) If, in one series ofacts so connected together asto form the same transaction, more offences than
one are committed by the same person, he may be charged with, and tried at one trial for, every such
offence.
(2) When a person charged with one or more offences of criminal breach of trust or dishonest
misappropriation of property as provided in sub-section (2) of section 212 or in sub-section (1) of section
219, is accused of committing, for the purpose of facilitating or concealing the commission of that
offence or those offences, one or more offences of falsification of accounts, he may be charged with,
and tried at one trial for, every such offence.
(3) If the acts alleged constitute an offence falling within two or more separate definitions of any law in
force for the time being by which offences are defined or punished, the person accused of them may be
charged with, and tried at one trial for, each of such offences.
(4) If several acts, of which one or more than one would by itself or themselves constitute an offence,
constitute when combined a different offence, the person accused of them may be charged with, and
tried at one trial for the offence constituted by such acts when combined, and for any offence
constituted by any one, or more, of such acts.
(5) Nothing contained in this section shall affect section 71 of the Indian Penal Code (45 of 1860).

 Subsection 1

Section 220(1) is applicable where several offences are committed by the same person in the course of
same transaction. For example, A, in course of committing murder of X, at first breaks the house then
assaults him, takes all the jewellery kept in the house, then murders him in the same transaction. A has
committed offence of housebreaking, assault, robbery and murder. Thus A may be charged for all such
offences together and tried for all at same trial. Section 223 is applicable to a situation where several
persons commit several offences in the same transaction.

same transaction- When series of acts are so committed by a person have unity of purpose or design
that would be a strong circumstance to indicate those acts form part of the same transaction. Some
criteria which may be relevant to decide if the transaction is same, on decided cases are

 continuity of action and sameness of purpose

 proximity of time or place between the several acts (examples can be found on
pages 1176, 1177and 1178 Volume II of DD Basu)

The question whether the acts alleged constituted one transaction is to be determined by the
magistrate at the beginning of the trial and before framing of charges. At this stage, the primary source
to determine this would be the FIR, police investigation, complaint (if complaint was made), ‘nature of
accusation made by the prosecution’

- Subsection 2

Where there is accusation of falsification of accounts, along with a charge or charges of breach of trust
or misappropriation falling under section 212 (2) or section 219(1), the accused may be jointly tried for
several acts of falsification of accounts along with several acts of breach of trust or criminal
misappropriation, irrespective of the test of ‘one transaction’ under sub section 1 of section 220.

- subsection 3

If same act results into two different offences (for example a slap will be hurt under section 323 or
criminal use of force against under section 352) Here same act of slapping results into offence falling
within two different separate definitions. In such cases accused may be charged jointly with 323 as well
as 352 and tried jointly.
 - subsection 4

When two separate acts combine together to form an offence (for example in one act dacoity, in
another act commits murder) Thus when two different acts result into two different offences but
combination of two different offences result into a third offence, the court may charge the accused with
and try at one trial for the individual offences as well as the combined offence (illustration m)

- sub section 5

Nothing in this section shall affect section 71 of the Indian Penal Code.

Under section 220 (3) from the same act if accused commit such an offence which falls under two
different sections, he can be charged jointly and tried together. If accused is convicted and punished
separately for both the offences arising from same act, it may be not justified as it may be akin to
punishing a person twice for the same offence. Similarly, under section 220 (4) if accused is convicted for
all offences and punished for all it may somewhere amount to punishing the accused for more than
what he has actually done. So section 71 of IPC lays down that in no circumstances the court can give
total sentence than the maximum sentence available to one of such offences. Thus, section 71 restrict
the punishment to one of the offences which have maximum punishment. Section 71 does not prohibit
conviction for both offences rather sentencing is restricted.

Under Section 71 second and third para, limitation is put only with respect to the punishment and it
relates only to section 220 (3) and section 220 (4) of CrPC respectively. The maximum sentence upon
conviction of all these offences would not be more than that which could be awarded for any one of
those offences. Section 71 does not declare that accused could not be convicted for those offences or
that the sentence shall not be passed for those offences. Rather the court is free to convict and pass the
sentences. But limitation is put on the quantum of aggregate sentence. It shall not be more than the
maximum for any one of them. that is why section 71 is read under along with section 220 (5).

Other relevant section here is section 31 of CrPC (sentences in cases of conviction of several offences at
one trial). According to this section, a person may be convicted of two or more offences at the same
trial. This is possible when two or more charges are joined together. for example under section 219
when offences of same kind are committed thrice in one year or under section 220(2) if offence is like of
falsification of accounts, it will be tried together with offence of misappropriation of money or under
section 220 (1) the accused has committed many offences in same transaction. In all these cases,
charges are joined and tried together then there is a possibility that court may inflict several
punishments for several offences in same trial. If offences A,B and C are charged jointly and tried, the
punishment if given by court is imprisonment for all these three offences, then as a general rule laid
under section 31 (1) imprisonment for all offences ABC shall run concurrently. but if court wishes, the
imprisonment can run consecutively. However, the court has to give reasons for deviating from general
rule of concurrent punishment. If court orders for consecutive imprisonment, they shall run one after
the other.

But application of section 31 is subject to section 71 of the IPC. It means that section 31 will not apply in
cases of offences mentioned in section 71 of IPC that is sections 220 (3) and section 220(4). It means in
cases of offences under section 220 (3) and section 220 (4), maximum punishment can be given up to
the maximum permissible in one of the several of offences for whatever he is charged. This is possible
by virtue of section 71 of IPC. In such case one punishment is for all offences so there is no question of
consecutive discharge of punishment. That is why section 31 is not applicable to offences mentioned
under section 71 of the Indian Penal Code.

Section 31 is kept separate and is for situation where several offences attached jointly and several
offensive have occurred by several different acts. So different acts are punished that is why punishment
for different acts will be as a general rule run concurrently but if court orders with reason they run
consecutively.

Subsection 2 of section 31 however sets a limit. if aggregate punishment in case of consecutive

sentences for several offences is greater than the punishment the court is competent to inflict under
CrPC, then by this reason court is not required to send the offender before a higher court through
committal or submission. It means court in case of consecutive punishment can award aggregate
punishment more than what court is generally competent to punish for single offence but there are
certain limitations. The aggregate punishment shall not exceed twice the amount of punishment the
court is competent to impose for a single offence. Secondly in no case such a person be sentenced to
imprisonment for a longer period than 14 years.

221 Where it is doubtful what offence has been committed.

(1) If a single act or series of acts is of such a nature that it is doubtful which of several offences the
facts which can be proved will constitute, the accused may be charged with having committed all or any
of such offences, and any number of such charges may be tried at once; or he may be charged in the
alternative with having committed some one of the said offences.

(2) If in such a case the accused is charged with one offence, and it appears in evidence that he
committed a different offence for which he might have been charged under the provisions of sub-
section (1), he may be convicted of the offence which he is shown to have committed, although he was
not charged with it.

In case of doubtful charges under section 221 the court has three options – firstly, the court can frame
charges for all those offences and it can join the charges in the same trial or secondly, the court can
make a single paragraph and in that paragraph itself it can write all the offences by writing ‘or’, thirdly,
the court can frame the charge of only one of the doubtful offences and it may after the trial convict the
accused for the same offence for which he was charged or some other doubtful offence. Thus in cases of
first and second situation when conviction has been done after trial for one of the offences then the
charge for other offence will be automatically be abandoned. In either of the above cases since charges
could be framed on basis of same facts and since trial on same fact is conducted so there is no need for
framing fresh charge and upon some fresh also trial will be conducted upon same facts.

Example - Where court is in doubt whether accused should be charged with section 379 (theft) or with
section 411 (receiving stolen property). In such cases courts has three alternatives under section 221(1).
The court may charge the accused for both offences under - section 411 and section 379; secondly court
may charge any- section 411 or section 379; or thirdly only one of the offences may be charged against
accused.
If court opts to charge the accused only with one of the offences, say under section 379 but in trial
section 379 is not proved rather the court convicts accused for section 411. Here there is no necessity to
charge the accused for section 411 of IPC again because on basis of same fact he is convicted under
section 411. These facts have been proved so no new defence is necessary. The court may convict under
section 411 without framing charges against accused.

other examples for such doubtful instances can be sections 307 and 326 of IPC, sections 409 and 420 of
IPC, sections 361 and 366 of IPC, sections 201 and 302 of IPC.

Section 222 - When offences proved included in offences charged

(1) When a person is charged with an offence consisting of several particulars, a combination of some
only of which constitutes a complete minor offence, and such combination is proved, but the remaining
particulars are not proved, he may be convicted of the minor offence though he was not charged with it.
(2) When a person is charged with an offence and facts are proved which reduce it to a minor offence,
he may be convicted of the minor offence, although he is not charged with it.
(3) When a person is charged with an offence, he may be convicted of an attempt to commit such
offence although the attempt is not separately charged.
(4) Nothing in this section shall be deemed to authorise a conviction of any minor offence where the
conditions requisite for the initiation of proceedings in respect of that minor offence have not been
satisfied.
- Subsection 1
For example in a case prosecution presents four facts 1,2,3, 4 to show that the accused has
committed murder. So, accused is charged with murder. However, in trial, fact 1 could not be
proved fact 2,3 and 4 were proved. These proved facts do not constitute murder rather they
constitute culpable homicide not amounting to murder. So the accused would be punishable with
the minor offence even though he was not charged for it.
- Subsection 2
When a person is charged with an offence and the facts which are proved reduce the offence to a
minor one, he may be convicted for the minor offence although he is not charged with it.
The difference between subsection 1 and subsection 2 is that in case of subsection 1 main offence
is not proved and some particular of main offence is proved which constitutes only a minor offence.
But in case of subsection 2, main offence is proved but some other facts proved was reduced to a
minor offence.
- Subsection 3
when a person is charged with an offence he may be convicted of an attempt to commit such
offence all the attempt is not separately charged.

Section 300 person once convicted or acquitted not to be tried for the same offence
- Subsection 1
A person who has once been tried by a Court of competent jurisdiction for an offence and
convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not
be liable to be tried again for the same offence, nor on the same facts for any other offence for
which a different charge from the one made against him might have been made under sub-section
(1) of section 221, or for which he might have been convicted under sub-section (2) thereof.
 Once a trial is over a person can’t be tried again for the same offence. It is like the application of
principle of res judicata. section 300 is concerned with trial alone and not on conviction or
acquittal. It is immaterial whether after trial one is acquitted or convicted. The only basic
requirement for a bar on subsequent trial is that previous trial against some person is over. Bar of
subsequent trial is not only applicable in cases of offence for which he is tried but also applies on
other offences if any based upon same facts.
Subsequent trial is barred till the period of conviction or acquittal in previous trial remains in force.
It means if court of session has convicted A then and his conviction remains in force. If A prefers
appeal then also conviction remains in force as long as appeal is going on. If judgement of session
court is set aside by the appellate court then acquittal order of High Court will remain in force. Thus
whatever remains in force, conviction or acquittal, for that period, no subsequent trial can be
started against the same person.
Thus, if court of session has tried A and acquitted then court of concurrent jurisdiction is barred by
section 300 (1) to again try that accused for the same offence. Such bar is imposed by section
300(1) to avoid conflicting judgement. Another reason is pestering the accused for more than one
for same offence by conducting trial for same offence for which he has been convicted or acquitted
should not be allowed.
Section 300 (1) applies when trial is over. However what happens when a case is pending and at
the same time a trial is also going on against the same person in other court? Section 300 (1) does
not apply to matters sub judice. In such cases generally court consolidates the matter.

Section 258 is about the power to stop proceedings in certain cases. In a summon trial if the trial
court stops proceeding before principal evidence is recorded then it amounts to discharge. If the
trial court stops proceeding after principal evidence is recorded, then it amounts to acquittal.

A case of discharge or dismissal of complaint would not fall under section 300 (1) as this section
applies only in cases of acquittal or conviction. Thus whenever accused was discharged by court,
the bar of section 300(1) will not apply and the accused can be tried again for same offence.
However, section 300 (5) deals with a case of discharge under section 258 in a summons trial to be
a special case and the only limitation put upon retrial in that retrial can be done only after the
consent of magistrate who had discharged or any superior court of that particular magistrate has
been obtained.

- Subsection 2
A person acquitted or convicted of any offence may be afterwards tried, with the consent of the
State Government, for any distinct offence for which a separate charge might have been made
against him at the former trial under sub-section (1) of section 220.

Example- if a person commits murder, housebreaking, mischief, in one transaction, under section
220 (1) all such offences may be charged jointly. But if the accused was not charged jointly and
tried only for murder and convicted for the same. Bar of section 300 (1) will not apply on trial for
other offences such as housebreaking on mischief. Trial can be initiated against the same person
for other offences committed by him in same transaction. Only limitation imposed by sub clause 2
 is to sanction consent of the state government for trying such person for other offences. The logic
behind not applying bar of section 300 (1) is that all offences are based on different facts and not
on the same fact. But as a matter of policy, trial should be done together for all the offences
committed in the same transaction to prevent multiple proceedings even though it is not
mandatory.

- Subsection 3
A person convicted of any offence constituted by any act causing consequences which, together
with such act, constituted a different offence from that of which he was convicted, may be
afterwards tried for such last-mentioned offence, if the consequences had not happened, or were
not known to the Court to have happened, at the time when he was convicted.
A person does an act which results into an offence immediately. he is tried for and convicted for
this offence. Consequence of such that constitutes a different offence from that of which he was
convicted. Afterwards, he may be tried for such offence resulting from consequence of the act if
such consequence of the act had not happened or were not known to the court to have happened
at the time when he was convicted.
For example, A gives a blow on X with lathi. Trial was conducted and A was convicted for attempt
to murder. Later, as a consequence of the act done by A, X dies. A may be tried for murder too, if
murder had not happened or were not known to have happened at the time when he was
convicted for attempt to murder.

Issue - Why only ‘convicted’ is written under section 300(3) while in section 300 (1) and section 300 (2)
both ‘acquittal’ or ‘convicted’ has been used?
If someone is not convicted for smaller offence then no question arises for trying him for bigger offence.
Thus due to practical necessity conviction is written under section 300 (3).

- Subsection 4- A person acquitted convicted of any offence constituted by any acts may, notwithstanding
such acquittal or conviction, be subsequently charged with, and tried for, any other offence constituted by
the same acts which he may have committed if the Court by which he was first tried was not competent to
try the offence with which he is subsequently charged.

Example- If A has committed robbery but additional magistrate tried and convicted him for theft,
then once A has been convicted for theft, there after can the judicial magistrate again convict A for
robbery? Yes, he can do so under section 300 (4). The subsequent trial is not barred by 300 (1), the
reason being that robbery is a bigger offence. Therefore, what is essential here is that the accused
should have been acquitted or convicted for smaller offence and thereafter it was revealed on the
same facts that he had committed some grave offence which the earlier court was not competent
to try. Then for such grave offence, some other court which is competent to try can conduct the
trial.

- Sub section 5- A person discharged under section 258 shall not be tried again for the same offence except
with the consent of the Court by which he was discharged or of any other Court to which the first mentioned
Court is subordinate.
- Subsection 6- Nothing in this section shall affect the provisions of section 26 of the General Clauses Act,
1897 (10 of 1897) or of section 188 of this Code.
 Section 223 - Joinder of accused in the same trial
Joinder of accused in same trial is primarily related to the fact that the accused in reference to offence
committed may be connected with each other in such a manner that conducting their trial together may
reduce the duration of the trial and may also reduce the complications. At the same time the common
witnesses can be examined only once and conflicting judgements can also be avoided.

The following persons will be charged and tried together namely

- persons accused of the same offence committed in the cause of the same transaction
- Persons accused of different offences committed in the course of same transaction
- Persons accused of an offence and persons accused of abetment or attempt to commit such
offence
- Persons accused of more than one offence of the same kind within the meaning of section 219
committed by them jointly with the period of 12 months
- persons accused of an offence which includes theft, extortion, cheating, or criminal misappropriation, and
persons accused of receiving or retaining, or assisting in the disposal or concealment of, property possession
of which is alleged to have been transferred by any such offence committed by the first-named persons, or of
abetment of or attempting to commit any such last-named offence;
- (f) persons accused of offences under sections 411 and 414 of the Indian Penal Code (45 of 1860) or either of
those sections in respect of stolen property the possession of which has been transferred by one offence;
- (g) persons accused of any offence under Chapter XII of the Indian Penal Code (45 of 1860) relating to
counterfeit coin and persons accused of any other offence under the said Chapter relating to the same coin,
or of abetment of or attempting to commit any such offence; and the provisions contained in the former part
of this Chapter shall, so far as may be, apply to all such charges:

The proviso says that if a number of persons are charged with separate offences and such persons do
not fall within any of the above clauses, then such persons may make an application before the court for
joinder. They will have to apply jointly. On such application, the court may try all such persons together
if they would not be prejudicially affected.

Discharge:

If upon consideration of the record and documents and hearing the submissions of the accused and the
prosecution, the Judge finds that the charge against the accused is groundless and there is a not
sufficient ground for proceeding against the accused, he shall discharge the accused and record his
reasons for doing so.

The words “not sufficient ground for proceeding against the accused” in section 227 of the Code mean
that the judge is required to apply a judicial mind in order to determine whether a case for trial has been
made out by the prosecution. It may be better understood by the proposition that whereas a strong
suspicion may not take the place of proof at the trial stage, yet it may be sufficient for the satisfaction of
the court in order to frame a charge against the accused person.

In Union of India v. Prafulla Kumar, the Supreme Court held that for the purpose of determining whether
there is sufficient ground for proceeding against an accused, the court possesses a comparatively wider
discretion to determine the question whether the material on record, if not rebutted, is such on which a
conviction can be said to be reasonably possible.

In the case of State of Bihar v. Ramesh Singhit is held that at the beginning and at the initial stage of the
trial, the truth, veracity and effect of the evidence which the prosecutor proposes to adduce are not to
be meticulously judged.